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Heightened Scrutiny

One of the central questions in the two gay marriage cases to be argued before the Supreme Court this week is whether gays and lesbians are a protected class under the Constitution. Under longstanding principles, government actions that fall heavily on “discrete and insular minorities” historically subject to prejudice and stigma are to be given particular scrutiny.

The 3.4 percent of Americans who identify as gay, lesbian, bisexual and transgender clearly qualify as this kind of minority. Laws classifying individuals based on sexual orientation — the anti-gay-marriage initiative in California called Proposition 8 and the federal Defense of Marriage Act — must be given heightened scrutiny.

Justice Ruth Bader Ginsburg, then the foremost advocate for gender equality, swayed the court 40 years ago to adopt that standard for gender-based distinctions. The court concluded “that classifications based upon sex” were “inherently suspect.” But it has not yet decided how to treat laws based on sexual orientation. The solicitor general and others argue persuasively that such laws require close review just as those based on gender do.

The United States Court of Appeals for the Second Circuit struck down the Defense of Marriage Act for defining marriage as between a man and a woman. The appeals court convincingly found that in focusing on sexual orientation, the act warranted heightened scrutiny under the test the Supreme Court established for gender-based laws — and that the statute was unconstitutional when reviewed closely. The test considers whether members of the group have experienced invidious discrimination; whether individuals can leave the group without losing a basic part of their identities; whether the group’s defining characteristic is relevant to its ability to contribute to society; and whether members can protect themselves in the political process.

Gays, lesbians, bisexuals and transgender people share a common “immutable” characteristic because their sexual orientation is fundamental to who they are and they have indisputably been discriminated against. Until a decade ago, the Supreme Court upheld state laws making “private sexual conduct” between people of the same sex a crime. In the five most recent years for which the government has data, through 2011, hate crimes in the United States fell by 19 percent. But hate crimes based on sexual orientation went up by 3 percent. The discrimination has nothing to do with the ability to contribute to society.

Finally, gays and lesbians, as a minority group, cannot protect themselves from discrimination in a political process governed by the majority. If they had power, Proposition 8 and the Defense of Marriage Act would never have passed, nor would the laws currently on the books in 39 states that specifically restrict marriage to opposite-sex couples.

As the brief for the United States said in the Defense of Marriage Act case, “This is the rare circumstance in which a faithful application of the court’s established criteria compels applying heightened scrutiny to an additional classification.” Neither of the laws in the two cases before the court can withstand this serious constitutional examination.